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March 28, 2002


The opinion of the court was delivered by: Sullivan, District Judge.


Plaintiffs, Christopher Marcus Johnson and his mother, Pamela Annette DeNeal. filed this lawsuit alleging violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and 42 U.S.C. § 1983. Plaintiffs allege that the District of Columbia Public Schools (DCPS) violated the IDEA's right to counsel and attorney's fees provisions by including in a settlement offer a waiver of attorneys fees, and by the subsequent conduct of the DCPS at a hearing in which plaintiffs challenged the fee waiver provision of the settlement. In addition to alleging that the DCPS violated plaintiffs' right to counsel and fees in this particular case, plaintiffs also allege that it is the DCPS' ongoing custom, policy, and practice to interfere with the statutory rights to counsel and fees of plaintiffs bringing complaints pursuant to IDEA, in violation of IDEA and § 1983.

This case comes before the Court on defendant's motion to dismiss. Defendant argues that plaintiffs waived any right to challenge the settlement agreement when they entered into that agreement of their own free will. Defendant also argues that the Supreme Court's decision in Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986) precludes plaintiffs' challenge to the fee waiver contained in the settlement offer and argues that plaintiffs are not entitled to any attorney's fees after the Supreme Court's decision in Buckhannon Board and Care Home Inc., v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Therefore, argues defendant, plaintiffs have failed to state a claim under either IDEA or § 1983.

Also before the Court is plaintiffs' motion for an order barring implementation of a policy announced by DCPS by way of a memorandum dated August 31, 2001 ("the Perelman Memo"). In response, defendant incorporates the arguments raised in its motion to dismiss, as well as argues that plaintiffs lack standing to challenge this policy.

Upon consideration of defendant's motion to dismiss, and the opposition and reply thereto, as well as the applicable statutory and case law, the Court concludes that plaintiffs have stated a claim under both IDEA and § 1983. Defendant's motion is hereby DENIED.

Upon consideration of plaintiffs' motion for injunctive relief, the opposition and reply thereto, as well as the applicable statutory and case law, the Court concludes that plaintiffs have not established standing to challenge the policy announced in the August 31, 2001 memorandum. Plaintiffs' motion is therefore DENIED WITHOUT PREJUDICE to raising the issue at a later point in this case.


Plaintiff Christopher Marcus Johnson is a child in need of special education services. Christopher's mother, plaintiff Pamela Annette DeNeal, hired the services of an attorney, Ronald Drake, to assist her in acquiring a special education evaluation and services from the DCPS.

Ms. DeNeal alleges that her quest for special education services for Christopher was protracted unnecessarily by DCPS. After at least a year of trying to get the DCPS to evaluate her son's need for special education services, Ms. DeNeal became aware that DCPS may have already evaluated her son. Plaintiffs' attorney filed a request for a hearing seeking an order that the DCPS provide plaintiffs with a copy of the reports of the evaluations of Christopher that DCPS had already conducted.

After the filing of the hearing request, plaintiffs' counsel and counsel for the DCPS entered into settlement negotiations. On January 24, 2001, DCPS, through its counsel Jeffrey Kaplan, made a settlement offer that agreed to much more than the relief plaintiffs were seeking at their requested hearing. In particular, the settlement offer stated that DCPS would convene a placement meeting to determine Christopher's eligibility for special services within 10 days of the receipt of all independent evaluation reports. If Christopher was found eligible, DCPS agreed to develop an individualized education plan, and send referrals to at least three schools proposed by Christopher's parents. DCPS agreed to issue a notice of placement within 10 days of Christopher's being found eligible for services. DCPS also agreed, in the event that Christopher was found eligible for services, to immediately award fifty hours of one-on-one tutoring as compensatory education for past denials of such requests. DCPS agreed to fund this tutoring within certain limits. See Complaint, Ex. 2.

DCPS conditioned the settlement offer on the following term: "The parent waives any right to prevailing party status and will not seek legal fees and associated costs in regard to this matter." Complaint, Ex. 2. Plaintiffs' counsel recognized that the simultaneous generous offer of services and waiver of attorneys' fees created a conflict between the interest of counsel and interest of the plaintiffs. When Mr. Drake relayed the terms of this settlement offer to Ms. DeNeal, she also recognized the conflict. Despite this conflict, Ms. DeNeal instructed her counsel to sign the settlement offer on her behalf because it was in Christopher's best interest. The settlement offer was signed on January 24, 2001. Ms. DeNeal also authorized her counsel to request an administrative hearing to assert her complaint that the DCPS had violated her right to counsel under IDEA by inserting the fee waiver language into the settlement offer.

At the hearing, Mr. Drake attempted to offer written stipulated facts into the record, but DCPS refused to agree to those stipulations. Complaint, Ex. 4. Mr. Drake then attempted to enter those facts into evidence as proffers, but the document was not accepted into the record. Ms. DeNeal had waived her right to be present at the hearing, and plaintiffs' counsel did not intend to call her as a witness. However, the hearing officer ruled that plaintiff must testify in order to challenge the settlement agreement. After she ruled that Ms. DeNeal, who was not present, must testify, the hearing officer then denied plaintiffs' counsel's request to continue the hearing in order to be allowed time for Ms. DeNeal to present testimony. The hearing officer then dismissed the case.

The hearing officer's written determination offers two conflicting grounds for dismissing the case. The hearing officer first holds that she did not have jurisdiction to hear a challenge to a settlement agreement on the grounds that the proposed fee waiver impermissibly interfered with plaintiffs' right to counsel under IDEA. However, the hearing officer then concluded the evidence established that plaintiff voluntarily entered into the settlement agreement and that there was no evidence of coercion, duress, or lack of understanding. The hearing officer also concluded that there was no evidence that the provision of an appropriate educational placement for Christopher was jeopardized by the agreement, and consequently dismissed the complaint.

Plaintiffs filed this lawsuit on March 12, 2001 alleging that the DCPS had violated IDEA and § 1983. On September 4, 2001, plaintiffs filed a motion for an order barring the implementation of a DCPS policy reflected in a memorandum issued on August 31, 2001. See Plfs' Motion, Ex. 1. The memorandum was issued by Paula Perelman, Executive Director, Mediation and Compliance, Division of Special Education, DCPS. Id. The Perelman Memo was addressed to "Attorneys Who Represent Parents Who Prevail Against the D.C. Public Schools in Actions Brought Under the Individuals with Disabilities Act." It stated that pursuant to its interpretation of the Supreme Court's May 29, 2001 decision in Buckhannon,

effective September 1, 2001, DCPS will not pay attorneys' fees incurred in the course of executing a settlement agreement with an attorney representing a parent who alleges a DCPS violation of the IDEA unless the payment of these fees is a negotiated term of the settlement agreement in question.



I. Defendant's Motion to Dismiss

A. Standard of Review

The Court will not grant a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994). Accordingly, at this stage of the proceedings, the Court must accept as true all of the complaint's factual allegations. See Doe v. United States Dep't of Justice, 753 F.2d 1092, ...

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